(Manit Sharma is a second-year student at Gujarat National Law University, Gandhinagar.)

Featured Artwork: A Violation of Constitutional Protection for Dalits by Round Table India 2022

Introduction

The Supreme Court recently, in the case of Janhit Abhiyan v. Union of India, upheld the validity of the EWS reservation by a 3:2 judgement. The reservation was imposed by the 103^rd Constitutional Amendment in government jobs and for admission to educational institutions, the amendment put forth a new reservation criterion of 10% for persons of the Economically Weaker Section (EWS) class. This judgement is seen as a judgement which is deviating from the precedents. Three issues were mainly the point of controversy- firstly, it created a sole new criterion of reservation which contrasts with the precedents; secondly, the 50% ceiling as set forth by the apex court in the Indra Sawhney v. Union of India [“Indra Sawhney”] case was breached by the EWS quota; thirdly, it excluded SCs, STs and OBCs who were already receiving the benefits of reservation. In this piece, first I will analyse the precedents laid down by the apex court which clearly shows that reservation can be carved out only for a homogeneous class of recipients who are socially backward. Thereafter, I will analyse the shift adopted by the court in the recent case and how the court deviated from the precedents and in some point misinterprets the precedents. Lastly, I will try to show how the court could have either propounded a reasoning of how reservation can be carved even for a class that is not homogeneous or could have also formed a class within the EWS class, as it did for the OBC class in the Indra Sawhney Judgement.

The Precedents

The apex court has been consistent in its ruling that the recipients of reservation should be a homogeneous and precisely delineated class of recipients. In the case of M.R. Balaji v. State of Mysore, the Supreme Court insisted that the class which is provided with the benefits of reservation should be precise and similarly situated. The same was reiterated by the court in the cases of Triloki Nath & Anr. v. State of Jammu and Kashmir and Dayaram Verma v. State of Gujarat .

The court was facing a similar dilemma, as is faced in the recent case, in the case of Indra Sawhney of how to carve a class which is precisely delineated and also whether sole economic criterion is a valid criterion or not? The Court in this reputed case made an emphasis to the R. Chitralekha v. State of Mysore [“Chitralekha”] judgement which propounded occupation-cum-means test of determining whether a class is actually socially disadvantaged due to its economic status or not, the Chitralekha judgement made it clear that although reservation can be made based on non-caste basis, it should clearly show that the group is in a socially disadvantaged position solely because of its economic condition. While following the precedent set forth in the Chitralekha judgement, the court in Indra Sawhney held that it is the economic advancement strictly in connection to social advancement and not just economic advancement per se that snaps one’s connection with the backward class to which the recipient belonged and makes one a part of the “creamy layer.” The court was clear that the social position of a class is taken into consideration and not the economic situation of the class.  It can be concluded that the Supreme Court has been consistent in its line of thought that the basis for providing reservation is for the social advancement of that class. The court in Indra Sawhney made it clear that economic reservation can be made for any class if it is shown that their social advancement is restricted due to their economic position like of agricultural labourers, rickshaw-pullers/drivers, street-hawkers. On the contrary, the EWS class incorporates in itself people from various occupational backgrounds, societal status, job security, making it unclear whether they are forming a homogeneous class of recipients whose social advancement has been stopped because of their economic status, the court was called upon to adjudge on this issue in the recent case.

The shift from the precedents taken in the recent case

When analysing whether the EWS class forms a homogeneous class of recipients or not, the court held that Article 15(6) and 16(6) form a whole new class altogether, one that is not subject to the precedents and such an affirmative action by the state doesn’t require to pass the social backwardness test of Article 15(4) and Article 16(4), the court substantiated this reasoning by applying the American Supreme Court case of Griffin v. Illinois,  in this case, it was held that the state can take actions for the financially, educationally and socially backward people, to uplift their position in the society. However, this reasoning contrasts with the precedents of Indian courts. According to the precedent laid down in Indra Sawhney, it is clear that there is a coherence across Articles 15 and 16 as a whole, rather than just being limited to Articles 15(4) and 16(4) and any change in the equality code should be in coherence with what the equality code stands for. However, by applying the reasoning laid down in the recent case, it can reasonably be implied that the EWS quota will run against the remaining equality code, neglecting precedents laid down in the Indra Sawhney Judgement.

When analysing whether the state can make reservations on the sole economic criterion, the court upheld the sole economic basis of reservation by supporting its reasoning on the occupation-cum-means test laid down in the Chitralekha Judgement, however, it can be seen as a misinterpretation of this judgement as the precedent laid down in the judgement clearly provides for reservation on sole economic criterion, as long as the group forms a homogeneous class of recipients.

The court further relied on Article 46, which states that the state shall protect the weaker sections from exploitation. The court in the recent case was of the opinion that “weaker sections” doesn’t only mean SCs, STs or OBSs but also other sections of the society which are weak not only because of their caste and held that this article allows the state to make affirmative actions to promote economic interests of the weaker sections. However, in the case of EWS, there is no precise class which can be seen as a weaker section, as it inscribes within people from various occupation backgrounds, job security, blue collar jobs vs white collar jobs, castes. Further, weaker section can also be considered from the angle of social backwardness as is seen from the precedents.

The court also said that if economic criteria was considered by Indra Sawhney by looking at societal conditions of that time, the sole economic criterion can be considered relevant in the present context also. However, here the court failed to show the need of such a reservation in the present context, and why there is a need to shift from the criteria of social backwardness and homogeneous class of recipients to sole economic criterion of reservation.

Another possible path

The Court in the recent case had the opportunity to show the connection between economic criterion and social backwardness, as it did in Indra Sawhney, by linking how the economic backwardness is linked to social backwardness. The court as it did in Indra Sawhney could have prescribed a mode of determination showing how economic disadvantage is severe, resulting in obstructed social advancement. The court could have thought of another way by limiting the benefits of EWS reservations for the most vulnerable portions as the EWS class contains within itself people from various castes, religion, occupational background, job security, white collar vs blue collar jobs, economic instability. Simultaneously, this would also effectuate reservations for economically disadvantaged sections of the society that are devoid of social advancement. The court could have determined a homogeneous class of recipients, satisfying the occupation-cum-means test and could have carved another class within the present EWS based on social backwardness, by taking precedence from Indra Sawhney, where the court made it clear that reservation can be carved out without looking caste as a factor if it is clearly seen that the class is prima facie backward, the court gave the examples of rickshaw drivers, agricultural labourers, etc.

Conclusion

The EWS Judgement is seen as a judgement which shifts the focus of reservation in our country from the precedents which were mainly focused on the caste based reservations. The judgement makes the line of thought clear that now the reservation regime will be focused on economic disadvantage which stops other advancement of an individual in other fields other than just social backwardness. It is seen that the court in the recent case deviated and misinterpreted precedents. This doesn’t mean that all is lost, the criteria laid down in the EWS class is subject to judicial review, it is expected that at that time the court will take these principles under consideration.